Court summary

Status

On 8 November, Justice Flick of the Federal Court found that the Enterprise Agreement in this case was not an agreement which was susceptible of approval pursuant to s 186 of the Fair Work Act. His honour found that the approval of the Agreement should be quashed and a declaration granted that the Agreement is void and of no effect.

Justice Flick ordered that the parties bring in Short Minutes of Orders to give effect to the reasons within 14 days.

On 23 November, Justice Flick finalised the order to quash the approval of the Agreement and declared the Agreement void and of no effect.

Director of the Fair Work Building Industry Inspectorate v CFMEU & Ors

Summary

Catanzariti VP, Drake SDP, Spencer C

RIGHT OF ENTRY – application for permit – ss.513, 604 Fair Work Act 2009 – appeal – Full Bench – appeal against decision granting right of entry permit to Mr Ravbar, Divisional Branch Secretary of CFMEU – key ground of appeal concerned whether the DP at first instance should have implied Mr Ravbar was responsible for any of the conduct giving rise to penalties involving contraventions by CFMEU – public interest not enlivened – no evidence before Commission linking Mr Ravbar to contraventions by CFMEU – not sufficient to rely on assertion of CFMEU's history of non-compliance with industrial laws and cultural wilful disobedience – no facts in evidence supported an inference that Mr Ravbar omitted to take any reasonable steps to ensure that others under his control failed to comply with the law – no evidence to support a finding that CFMEU's history of contraventions said anything about Mr Ravbar's personal conduct, character or reputation – appealable error not identified – appeal dismissed.

Court summary

Fair Work Division of Federal Court of Australia.

Application [QUD1157/2015] filed 23 December 2015, seeking relief under section 39B of the Judiciary Act and section 562 of the Fair Work Act.

Status

On 12 December 2016 a Full Court of the Federal Court handed down judgment in this matter. The Court held that the application be dismissed.

Summary

Watson VP, Drake SDP and Johns C

TERMINATION OF EMPLOYMENT – misconduct – ss.394, 400, 604 Fair Work Act 2009 – permission to appeal – Full Bench – applicant dismissed for serious misconduct after returning positive drug test – Full Bench satisfied that Commissioner at first instance provided a comprehensive and balanced consideration of the evidence – no arguable case of appealable error – Full Bench considered the public interest test – principles set out in Regan – not satisfied that the public interest is attracted – permission to appeal refused.

Summary

Catanzariti VP, Booth DP and Roberts C

TERMINATION OF EMPLOYMENT – termination at initiative of employer – ss.394, 400, 604 Fair Work Act 2009 – appeal – Full Bench – at first instance Commissioner found dismissal employer's initiative – detailed written and oral submissions from the parties considered – Full Bench noted that the case before it has been run on the basis that the continuation of employment was not permissible and was inconsistent with the Child Protection (Working With Children) Act 2012 (NSW) – continuation of employment would be illegal on the part of the employer – Full Bench found that it cannot be fairly said that the employee's employment was terminated on the employer's initiative – permission to appeal granted – upon re-hearing, the appeal is allowed on the basis that the employment could not have continued as this would have amounted to illegality – application for unfair dismissal dismissed.

Court summary

Fair Work Division of the Federal Court

Application [NSD253/2016] filed 22 February 2016 seeking relief under section 39B of the Judiciary Act 1903, ss. 21, 22 and 23 of the Federal Court of Australia Act 1976 and ss.562 and 563 of the Fair Work Act 2009.

Status

On 29 November 2016, the Full Court of the Federal Court ordered:

Writs of certiorari issue quashing the decision of the Full Bench of the FWC made on 21 July 2015 to give the first respondent permission to appeal, to allow the appeal and to dismiss the applicant's unfair dismissal application, and

A writ of mandamus issue commanding the Full Bench of the FWC subject to the grant by it of permission to appeal, to hear and determine the first respondent's said appeal according to law.

Summary

Watson VP, Kovacic DP and Wilson C

ENTERPRISE AGREEMENTS – approval – ss.172, 185, 604 Fair Work Act 2009 – appeal – Full Bench – appeal against decision to approve ALDI Regency Park Agreement 2015 – scope of agreement covered employees in ALDI's Regency Park Region and any new stores which opened in that region – at the time agreement was voted on no stores in the region had commenced trading – employees who voted on agreement were employed by ALDI at other locations but had accepted a written offer of employment to work in the region when stores commenced operations – appellants advanced various grounds of appeal – first ground: agreement should have been made as a greenfields agreement because ALDI was establishing a new enterprise and had not employed any of the persons who would be necessary for the normal conduct of the enterprise – respondent submitted that conducting its traditional operations in a new geographical area is not a genuine new business, and employees had been employed in the enterprise covered by the agreement – Full Bench had to consider if employees were employed at the time the agreement was made and were covered by the agreement – both elements involved questions of fact – found employees who accepted on-going employment in the region were employed by ALDI at the time the agreement was made – further, as their employment comprehended work within the scope of the agreement they were covered by the agreement – second ground: employees who were selected to approve the agreement were not fairly chosen because a group of 17 employees were selected to make an agreement for a much larger group of employees – appellants also submitted employees were not appropriately representative because seven of the 17 selected employees who voted on the agreement were managers – Full Bench held the test to determine whether the group of employees was fairly chosen requires consideration of the employees covered by the agreement, not the employees who vote for the agreement at the time it is made – third ground: the better off overall test (BOOT) was not properly applied – Full Bench found BOOT had been properly considered in the first instance – permission to appeal granted given the important interpretation issues – no appealable error found – each ground of appeal dismissed – appeal dismissed.

Court summary

Fair Work Division of the Federal Court.

Application [VID349/2016] filed 22 April 2016 seeking relief under s.562 of the Fair Work Act 2009 and s.39B of the Judiciary Act 1903.

Status

An interlocutory hearing took place on 13 June 2016 before Justice Tracey. The parties were ordered to file the agreed statement of facts on or before 22 July 2016. The applicant was also granted leave to amend the grounds of review set out in an affidavit it filed dated 22 April 2016.

Judgment for this matter was handed down on 29 November 2016. The Full Court of the Federal Court issued a writ of certiorari quashing the decision and orders of:

The Full Bench made on 22 February 2016 in matter numbers C2015/6904 and C2015/6909, and

Deputy President Bull made on 22 September 2015 in AG2015/3510.

The Full Court has also issued a writ of prohibition, prohibiting the Commission from proceeding further on the decision and orders made by Deputy President Bull on 22 September 2015 in AG2015/3510.

Summary

Drake SDP, Sams DP and McKenna C

TERMINATION OF EMPLOYMENT – extension of time – ss.394, 604 Fair Work Act 2009 – appeal – Full Bench – Commissioner refused grant of extension of time for lodgement of application for unfair dismissal remedy – objection to Presiding Member of Full Bench on basis of gender dismissed – applicant submitted multiple grounds of appeal – Full Bench not satisfied any errors identified by applicant are relevant or significant when taken individually or cumulatively – no public interest – appeal dismissed.

Court summary

Fair Work Divison of the Federal Court of Australia.

Application [ACD81/2015] was filed 4 August 2015, on appeal from the Federal Court.

Status

This matter is on appeal from the single Judge decision in matter [ACD43/2014], in which the appellant's originating application was dismissed.

The appeal application, and an interlocutory application, [ACD81/2015] was filed by the appellant on 14 October 2015.

The matter was set down for directions on 14 October 2015. In brief, the Court ordered that:

The appellant is to file and serve an amended notice of appeal and outline of submissions by 12 February 2016,

Any interlocutory application to be filed by parties is to be filed and served by 16 February 2016, and

The matter is stood over for further mention on 18 February 2016.

On 15 June 2016 the interlocutory application was heard by Flick J and dismissed. Judgment of the Full Court of the Federal Court, consisting of Flick, Jagot and Bromwich JJ, was handed down on 1 November 2016 dismissing the appeal.

A separate application filed on 14 June 2016, [ACD44/2016], seeking an extension of time and leave to appeal was dismissed on 21 October 2016 by Wigney J.

The Trustee for MTGI Trust t/a Macquarie Technology Group International v David Johnston & Anor

Summary

Hamberger SDP, Lawrence DP and Cargill C

[2015] FWCFB 1288

TERMINATION OF EMPLOYMENT – termination at initiative of employer – ss.394, 400, 604 Fair Work Act 2009 – appeal – Full Bench – appeal by employer against decision that employee had been unfairly dismissed and awarded compensation – Full Bench held findings made by Senior Deputy President in original decision were open on evidence before him – appellant seeking to rerun case in appeal hearing – number of factual assertions not supported by evidence – found no significant error in Senior Deputy President's findings – application for permission to appeal dismissed.

Summary

CASE PROCEDURES – costs – ss. 604 Fair Work Act 2009 – appeal – Full Bench – appeal by employer against costs decision at first instance – Full Bench held was not satisfied that MTGI has demonstrated any error in the Decision under appeal – application for permission to appeal dismissed.

Summary

Hatcher VP, Hamberger SDP & Saunders C

CASE PROCEDURES – appeals – extension of time – s.604 Fair Work Act 2009 – application for permission to appeal decision of Commission to refuse extension of time to lodge unfair dismissal application – notice of appeal under s.604 of FW Act must be filed within 21 calendar days of decision to be appealed – notice of appeal filed 775 days late – extension of time must be granted for appeal to be competent – considerations include whether there is a satisfactory reason for delay, length of delay, nature of grounds of appeal and any prejudice to respondent [Jobs Australia v Eland] – applicant submitted he was in Pakistan at time of decision and did not return to Australia until January 2015, at which time he saw decision for the first time – Full Bench not satisfied this was a reasonable explanation for the delay, and did not explain why notice of appeal not filed until December 2015 – delay can only be characterised as lengthy – unlikely that any grounds of appeal being pursued by applicant would be upheld – respondent likely to suffer prejudice if time extended, as employment with respondent ended almost three years ago – notice of appeal incompetent and dismissed.

Court summary

Application [WAD240/2016] filed on 26 May 2016 seeking to appeal the single Judge decision issued for matter [WAD79/2016] on 6 May 2016.

Judgment for this matter was handed down on 11 October 2016. Justice Siopis held that the appeal is dismissed for lack of competency pursuant to r 36.72 of the Federal Court Rules 2011.

Court summary

Application [QUD67/2016] filed 27 January 2016, seeking to appeal the single Judge decision of the honourable Bromberg J handed down on 5 January 2016.

Status

Judgment for this matter was handed down on 9 September 2016. The Full Court of the Federal Court ordered that:

the appeal be allowed in part, and

that Order 1 made by the primary Judge on 5 January 2016 be set aside.

The Teys Bros (Beenleigh) Pty Ltd Enterprise Agreement 2010 Remuneration Document October 2009 does not form part of, and does not vary, the Teys Bros (Beenleigh) Pty Ltd/AMIEU Production Department Enterprise Agreement 2010.

Summary

Watson VP, Hamilton DP and Johns C

TERMINATION OF EMPLOYMENT – termination at initiative of employer – ss.394, 400, 604 Fair Work Act 2009 – permission to appeal – Full Bench – at first instance the Commission found that the employee had been dismissed and there was no valid reason for the termination of her employment – appellant submitted that too much weight was placed on the issue of family violence committed outside the workplace, that it acted reasonably and diligently in not terminating the employment of the employee's former partner as requested – Full Bench found no issue of general application arising from the findings at first instance, and no issue of public interest – permission to appeal refused.

Status

Summary

Hatcher VP, Drake SDP and Cargill C

ENTERPRISE BARGAINING – majority support determination – ss.236, 604 Fair Work Act 2009 – Appeal – Full Bench – employer appealed decision that employee organisation was not restricted to proposing an agreement to cover only employees it represents – found at first instance that AMWU did not have to be bargaining agent for every employee covered by proposed agreement to seek majority support determination – Full Bench found that on ordinary meaning of legislation, AMWU entitled to seek majority support determination if it was bargaining representative for an employee covered by proposed agreement – no requirement to represent all employees covered by proposed agreement.

Court summary

Special leave to appeal application to the High Court of Australia, from the Full Court of the Federal Court decision handed down on 23 December 2015.

Application [S29/2016] filed 20 January 2016.

Status

Judgement was handed down on 15 June 2016 dismissing the special leave application to appeal.

Summary

Drake SDP, Lawrence DP and Cambridge C

ENTERPRISE AGREEMENTS – dispute about matter arising under agreement – ss.604, 739 Fair Work Act 2009 – appeal – Full Bench – appeal of decision in relation to a dispute arising under the Endeavour Energy Enterprise Agreement 2012 – questions as to the application of the Electrician's Licence Allowance – at first instance Commission determined specific categories of employees entitled to allowance – Full Bench to determine whether to grant permission to appeal – appellant contends appeal raises important questions, contains significant errors, resulted in a manifest injustice and potentially impacts other employers and employees – respondent argued that it is not in the public interest to grant permission to appeal – Full Bench satisfied that the resolution of the issue attracts the public interest and granted permission to appeal – considered Golden Cockerel and Essential Energy when interpreting clause – language of clause has plain meaning and is not ambiguous – at first instance Commission imported meaning into clause which did not arise from the words used – Full Bench satisfied clause is a grandfathering provision – conclusion at first instance wrong and amounted to an appealable error regarding the construction of the clause – appeal allowed – first instance decision set aside – Full Bench to provide assistance to parties through interest based bargaining – application returned to relevant Panel Head.

Court summary

Fair Work Division of Federal Court of Australia

Application [NSD1455/2015] filed 19 November 2015, seeking relief under s. 39B of the Judiciary Act, ss. 562 and 563 of the Fair Work Act and ss. 21, 22 and 23 of the Federal Court of Australia Act.

Status

Judgement for this matter was handed down on 10 June 2016 dismissing the application.

Summary

Ross J, Watson VP and Gostencnik DP

ENTERPRISE BARGAINING – protected action ballot – s.437 Fair Work Act 2009 – Full Bench – application for a protected action ballot order (PABO) – application heard by Commissioner Williams on 23 December 2015 – Maersk applied for matter to be referred to a Full Bench pursuant to s.615A FW Act – proper construction of ss.437(1) and (2A) and meaning of 'notification time' – Full Bench to determine various legal issues and then remit PABO application to Commissioner Williams for determination – Maersk contends that, properly construed, s.437(2A) read with s.437(1) mean that an application for PABO cannot be made before 'notification time' for proposed enterprise agreement – task of statutory construction must begin with consideration of the text itself [Alcan] – Full Bench not persuaded s.437(2A) requires that there has been a notification time in respect of enterprise agreement proposed by PABO applicant – legislative purpose in enactment of s.437(2A) in Fair Work Amendment Act 2015 was to ensure protected industrial action cannot be taken until after bargaining has commenced – a consequence of construction proposed by Maersk is that by not agreeing on scope of proposed enterprise agreement, an employer would be able to prevent employees from engaging in protected industrial action unless they have first obtained majority support determination, scope order or low paid authorisation – such a consequence is inimical to scheme of FW Act – Maersk's construction of ss.437(1) and (2A) could produce outcomes which are plainly contrary to scheme of FW Act and purpose of s.437(2A) – an employer could deny its employees right to engage in protected industrial action simply by failing to give a valid NERR, even though employer had agreed to bargain or had initiated bargaining for enterprise agreement with those employees – subsection 437(2A) enacted for limited purpose, to overcome effect of decision in J.J Richards and ensure protected industrial action cannot be taken until after bargaining has commenced – Full Bench rejected Maersk contention that because 'notification time' in s.173(2) triggers requirement for employer to give the NERR in respect of proposed enterprise agreement, Commission cannot make PABO unless employer has given a valid NERR for proposed enterprise agreement – application for PABO remitted to Commissioner Williams for determination.

Court summary

Fair Work Division of the Federal Court

Application [WAD149/2016] filed 14 April 2016 seeking relief under s.562 of the Fair Work Act 2009 and s.23 of the Federal Court of Australia Act 1976.

Status

Summary

Hatcher VP, Hamberger SDP & Saunders C

CASE PROCEDURES – appeals – extension of time – s.604 Fair Work Act 2009 – application for permission to appeal decision of Commission to refuse extension of time to lodge unfair dismissal application – notice of appeal under s.604 of FW Act must be filed within 21 calendar days of decision to be appealed – notice of appeal filed 775 days late – extension of time must be granted for appeal to be competent – considerations include whether there is a satisfactory reason for delay, length of delay, nature of grounds of appeal and any prejudice to respondent [Jobs Australia v Eland] – applicant submitted he was in Pakistan at time of decision and did not return to Australia until January 2015, at which time he saw decision for the first time – Full Bench not satisfied this was a reasonable explanation for the delay, and did not explain why notice of appeal not filed until December 2015 – delay can only be characterised as lengthy – unlikely that any grounds of appeal being pursued by applicant would be upheld – respondent likely to suffer prejudice if time extended, as employment with respondent ended almost three years ago – notice of appeal incompetent and dismissed.

Court summary

Application [WAD79/2016] filed in the Federal Court on 16 February 2016.

Summary

Hatcher VP, Watson VP and Riordan C

CASE PROCEDURES - appeals - ss.400, 604 Fair Work Act 2009 - appeal - Full Bench - appeals relating to decision in relation to application for unfair dismissal remedy - found at first instance that there was a valid reason for dismissal, dismissal was nonetheless unfair, reinstatement inappropriate, compensation ordered - considerable delay in hearing of appeals due to events beyond Commission's control - four main issues in employee's appeal - Full Bench found conduct of employee capable of being characterised as professional misconduct - rejected submission that there was no evidence to support this finding - even if valid reason found did not constitute serious misconduct, that does not amount to appealable error - Full Bench considered professional misconduct found to have occurred was a valid reason for dismissal - did not accept that Deputy President failed to give sufficient reasons for this conclusion - clear from evidence that real reason for dismissal was employer's stated reason - Deputy President correct in addressing valid reason consideration on this basis - open to Deputy President to conclude relationship between parties could not be re-established therefore reinstatement was not appropriate - did not consider employee denied procedural fairness because he was not put on notice that the way he conducted his case during hearing would be taken into account on question of remedy - never any suggestion that unfairness and remedy would be dealt with separately - in the circumstances, Deputy President cannot fairly be criticised for canvassing matters in decision on remedy which were not raised in hearing - no basis for conclusion that dismissal constituted act of unlawful discrimination - did not appear that any submission was put at first instance that employee was denied procedural fairness because plagiarism allegation was dealt with at time employee suffered from mental illness - employee was in any event beneficiary of finding that he had been denied procedural fairness - satisfied Deputy President made every reasonable effort to ensure employee received a fair hearing, taking into account mental health, language difficulties and fact that he was self-represented - Full Bench satisfied employee not denied procedural fairness in hearing of matter - no injustice suffered as result of decision - no appealable error identified - public interest not engaged - permission for employee's appeal refused - employer's appeal challenged conclusion that dismissal was unfair - Full Bench considered it was open to Deputy President to find employer did not provide employee with proper opportunity to provide explanation for his conduct, notwithstanding that employee went overseas without permission - cannot be said employee's absence from Misconduct Investigation Committee hearing was compensated for by other opportunities to respond to allegations - cannot be said attendance at hearing could not possibly have made difference to the outcome, having regard to Deputy President's finding that employee's conduct could not properly be characterised as plagiarism - no stay applied for or granted - presumed compensation order was complied with on or before 23 March 2012 - difficult to identify employer's appeal has any practical purpose - public interest not attracted - refused employer permission to appeal.

Summary

Catanzariti VP, Gostencnik DP and Cirkovic C

CASE PROCEDURES – appeals – extension of time – ss.394, 400, 604 Fair Work Act 2009 – Full Bench – appellant sought to appeal decision dismissing their application for unfair dismissal remedy – appeal lodged 66 days outside of the 21 day time period prescribed for instituting appeals – appellant submitted it had filed an application for judicial review in the Federal Circuit Court following the issuing of the decision – application dismissed on jurisdictional grounds – appellant claimed the making of the application was matter of practitioner error – evidence of correspondence between respondent's solicitors and appellant's representative regarding the appropriate forum for appeal – appellant did not take up the suggestion regarding the proper appeal jurisdiction – appellant aware of his right to lodge an appeal pursuant to s.604 of FW Act, however chose not to pursue this at the time – Commission not persuaded that appellant was blameless and inactive in the circumstances, or that satisfactory explanation for delay was provided – period of delay considered significant – Commission not persuaded arguments of appellant demonstrated appealable error – public interest not enlivened – Commission considered that if time extended there was a real likelihood that permission to appeal would not be granted, having regard to both the grounds of appeal and appellant's public interest arguments – interests of justice did not favour an extension of time for appellant to institute an appeal – application dismissed.

Court summary

Federal Circuit Court of Australia

Application [MLG260/2016] seeking declarations that the Commission feel into jurisdictional error and issuing a writ of mandamus remitting the decision [2016] FWC 302 back to the Commission be determined according to law.

Status

On 11 April 2016 Justice Hartnett ordered that the matter be struck out and the applicant ordered to pay costs to the respondent.

Court summary

Fair Work Division of Federal Court of Australia

Application for relief [NSD554/2015] filed on 15 May 2015 under s.39B of the Judiciary Act 1903, ss 562 and 563 of the Fair Work Act 2009 and ss 21, 22 and 23 of the Federal Court of Australia Act 1976.

This matter was listed for hearing before a Full Court of the Federal Court on 16 November 2015. Judgment for this matter was handed down on 3 February 2016 by a Full Court consisting of Buchanan, Bromberg and Rangiah JJ. The Court ordered that:

So much of the application as alleges jurisdictional error by Commissioner Cambridge in his decision on 27 February 2015 in Gregory v Qantas Airways Ltd [2015] FWC 1154 be dismissed.

A writ of certiorari be issued to quash the decision of the Full Bench of the Fair Work Commission (“FWC”) on 24 April 2015 in Gregory v Qantas Airways Ltd [2015] FWCFB 2599.

A writ of mandamus be granted requiring the FWC to deal again, according to law, with the notice of appeal filed by the applicant on 19 March 2015.

Summary

Catanzariti VP, Drake SDP, Spencer C

TERMINATION OF EMPLOYMENT – misconduct – ss.394, 400, 604 Fair Work Act 2009 – permission to appeal – Full Bench – at first instance the Commission dismissed the appellant's application for unfair dismissal – appellant submitted there was not sufficient evidence to conclude that he had breached his contract of employment, or took no action to comply with directions from his employer – further submitted that Commissioner did not consider the evidence of witnesses – Full Bench found the Commissioner did take account of evidence of five witnesses – held it was open to the Commissioner to conclude that there was a conflict or potential conflict of interests in decision at first instance – no significant error made by Commissioner – no other public interest grounds for granting permission to appeal – permission to appeal refused

Court summary

Application [QUD847/2015] seeking, among other things, interlocutory relief prohibiting the Commission from taking further steps in relation to the s.739 dispute.

Status

On 16 September 2015 Justice Bromberg ordered that the matter, including the applicant's application for interlocutory relief, is adjourned until 22 September 2015.

The matter was now listed for hearing on 20 October 2015. Judgment for this matters was handed down on 5 January 2016 by the honourable Bromberg J. The Court ordered that the application is dismissed.

Updated time

Last updated

01 November 2018

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